New York State Court of Claims

New York State Court of Claims

CARO v. THE STATE OF NEW YORK, #2001-014-511, , Motion No. M-62528


Synopsis


Renewed application for permission to file a late claim, upon sufficient demonstration of serious injury, is granted.

Case Information

UID:
2001-014-511
Claimant(s):
DIANE CARO
Claimant short name:
CARO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-62528
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Sanders, Sanders, Block & Woycik, P.C.By: Barbara E. Manes
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the claimant's application for permission to file a late claim: Notice of Motion, Affirmation, Affidavit, Physician's Affirmation, and Exhibits annexed; Affirmation in Opposition.

By Order filed June 20, 2000 (Motion No. M-61700), the Court denied the claimant's application for permission to file a late claim in connection with an automobile accident. The Court in its Order determined that the statutory factors of notice, opportunity and prejudice weighed in claimant's favor, that the delay in filing the claim was not excusable, and that the claimant may have other available remedies. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981. The application was denied without prejudice to renewal upon proper papers. The Court noted that "in the absence of any evidence whatsoever of serious injury, the proposed claim cannot be said to be meritorious. See, Edwards v State of New York, 119 Misc 2d 355; cf., Ferster v State of New York, 129 Misc 2d 333."

By this application, the claimant again seeks permission to file a late claim. Although the 90-day period to serve and file a claim or to serve a notice of intention has lapsed, Court of Claims Act §10(3), the current application was filed within the relevant statute of limitation so the Court has jurisdiction to grant relief under §10(6).

Based upon the Court's prior Order, the sole issue presented by this application is whether the claimant has demonstrated that she sustained serious injury (Insurance Law §§ 5102[d], 5104). The current submission includes an affirmation by a physician, which, for the purpose of Court of Claims Act §10(6), is sufficient to demonstrate that the claimant sustained serious injury; as such, the claimant has demonstrated that the claim appears meritorious.

Having considered the relevant statutory factors, Bay Terrace, supra, it is therefore,

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted; claimant shall file the proposed claim (in the form in which it is annexed to her submission as Exhibit B, except that it shall be denominated a claim) in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of the date of the filing of this Order.


February 14, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims